| Mich. | Apr 11, 1861
_ Vail recovered a judgment below, against Williams, as principal, and Beckwith and Kingsbury, as sureties on a replevin bond — Williams having become nonsuit in the original replevin suit, and Vail having recovered a judgment for the value of the property with the costs of his defense.
We think that the court rightly excluded the evidence of the want of title in Yail. The statute allows the defendant in a replevin suit, when the plaintiff becomes nonsuit, if entitled to a return of the property to waive it, and have a judgment for the value. And in a suit on the bond the measure of damages is the amount recovered in such action of replevin, and remaining uncollected: Comp. L. §5044. Where the statute provides the exact measure of damages there is no authority to reduce it. See Dorr v. Clark, 7 Mich. 310.
But we think the court erred in the view taken of the execution and the liability of the parties upon the bond under it. The obligation of the bond, as regulated by the statute, creates no liability until an execution issued in favor of the defendant in the action shall be returned unsatisfied in whole or in part:— Comp. L. §5043. This of course means an execution which in law is such as could properly be issued on the judgment. The judgment was in favor of a defendant in replevin, and appears — as the law requires — to be for the value of the goods replevied, as assessed by the court, together with the costs of his defense. The execution is not an execution in replevin at all, but an execution for damages in assumpsit, which is an entirely different form of action. Not only is this so, but it is a plaintiff’s and not a defendant’s execution, and therefore in no sense corresponds with the judgment. It was not amended while in the sheriff’s hands, or before action brought, and does not so correspond with the replevin proceedings that any court could properly read them together as part of the same record. It was. not in any proper sense an execution upon that judgment.